On February 22, 2022, the Eighth Circuit Court of Appeals decided the United States v. Alloway[i], which serves as an excellent review of the law related to consent to enter private premises and plain view. The relevant facts of Alloway are as follows:
The Missouri Division of Family Services (DFS) hotline received a call reporting drug activity, verbal abuse of children, and weapons at the house where Alloway lived with her boyfriend and his two minor children. A DFS social worker went to the house to do a welfare check that night. Two sheriff’s deputies, Travis Cochenour and Jeremiah Bragg, went along. Alloway saw them drive up and went outside to meet them. They told her the reason for their visit, and she invited them into the house. Alloway told them to wait in the kitchen while she went upstairs to get the older child.
While the social worker interviewed the child, Deputy Cochenour saw three loaded rifles. Where those rifles were is disputed. After confirming that Alloway was a felon, he arrested her. At that point, Alloway’s boyfriend came home. He told deputies that he was also a felon, and that there was another gun in the bedroom safe. When he refused to open the safe, he was also arrested. While the deputies were on the phone getting a search warrant for the safe, they spotted more guns in plain sight in the bedroom. They obtained and executed two search warrants for the residence. All told, they found 13 guns, over 125 grams of meth, and other drug evidence.[ii]
Alloway was subsequently charged under federal law with drug and weapons violations. She filed a motion to suppress the evidence and argued that (1) she did not give consent to the deputies to enter her residence, and (2), if she did give consent, the deputies exceeded the scope of the consent because the guns were not visible from the kitchen, which was the only location within the scope of her consent. The district court denied the motion to suppress after a hearing. The court found that the deputies were more credible than Alloway and based on their testimony, found that Alloway did invite the deputies into her residence and that the guns were visible from the kitchen. Alloway appealed the denial of the motion to suppress to the Eighth Circuit Court of Appeals.
At the outset, the court of appeals noted that credibility determinations made by the district court after a hearing are virtually unchangeable on an appeal. In other words, the court of appeals must adhere to the district court’s finding of fact unless it was clearly in error.
The court then set out to determine whether the district court erred in finding that Alloway consented to the deputies’ entry into her residence. The court first noted the relevant legal principles and stated
Generally, a warrantless search of or entry into a home violates the Fourth Amendment. But “a warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search.” United States v. Garcia-Garcia, 957 F.3d 887, 892 (8th Cir. 2020) (citation omitted) (cleaned up). Consent may be express or implied. United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006). The question is not whether the defendant subjectively meant to consent, but whether her conduct would cause a reasonable person to believe she consented to the search. United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001).[iii]
Thus, the question before the court is not whether a defendant subjectively (personally) meant to give consent, rather the court must examine whether the defendant’s conduct (express or implied) would cause a reasonable person to believe she consented to the entry or search.
In Alloway’s case, the court of appeals noted that she testified in the motion to suppress, “I told them [two deputies and the social worker] that they could come in the kitchen and I would go get” the child the social worker want to talk to. The deputies both testified that Alloway invited them into her residence. As such, the court of appeals held that this was sufficient for the district court to hold that Alloway consented and as such, the district court did not err.
The court then examined whether the district court erred in finding that the deputies observed the guns from the kitchen. Alloway argued that the deputies exceed the scope of her consent by going into the living room, where the guns were located. The court noted that
An officer can still violate the Fourth Amendment by exceeding the scope of consent. See United States v. McMullin, 576 F.3d 810, 816 (8th Cir. 2009). We analyze the scope of consent using an objective reasonableness standard. Id. at 815.[iv]
At the motion to suppress, Alloway argued that the guns were in the living room and could not have been seen from the kitchen because there was a curtain hanging in the doorway. A deputy testified that he observed the guns leaning against the wall as he stood at the kitchen doorway. The district court found the deputy more credible. The court of appeals noted the district court determined the deputy was more credible than Alloway because
[H]is version was written down while his memory was fresh; it was in a formal report that was used to obtain a search warrant, so there was professional incentive not to fabricate it; there were four or five potential witnesses (including the social worker and the children) who could challenge his version if he fabricated it; and the court didn’t find Alloway’s self-serving testimony to be as credible.[v]
Since there was nothing in the record to indicate the district court’s decision was clearly erroneous, the court of appeals found the deputy observed the guns in plain view from a lawful vantage point within the scope of Alloway’s consent.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
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Citations
[i] No. 21-1279 (8th Cir. Decided February 22, 2022)
[ii] Id. at 1-2
[iii] Id. at 4 (emphasis added)
[iv] Id. at 5 (emphasis added)
[v] Id. at 6
